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Posts Made By: James Brown

May 17, 2022 05:30 PM Forum: Politics

The Ted Cruz Supreme Court Decision

Posted By James Brown

Originally Posted by Rod Kaufman

Care to expound about that? My bet would be maybe one or two cons would have possibly been swayed by that argument and the rest, led by Clarence, would have been a flat out NO!...
Maybe start here.  http://pennstatelawreview.org/articles/114%20Penn%20St.%20L.%20Rev.%20415.pdf

Sure, the Penn State Law Review is not Vox (see your opening post)  But I think you'll find this credible.  As I mentioned above, Thomas is a free speech hero.  Restrictions based upon content are not in his DNA.  Frankly, I have no idea why you hate him so much.  Jim

May 17, 2022 05:39 PM Forum: Politics

The Republicans Who Voted Against Aid For Ukraine

Posted By James Brown

Originally Posted by Jim Moscheck

Then, Lauren Boebert, Marjorie Taylor Greene, Matt Gaetz, Madison Cawthorn, Jim Jordan, Andy Biggs, Louie Gomert, Paul Gosar, among others aren't conservative. 

Why do you guys still support these Putin sympathisers? Just cause there is an R after their name? 
Hi Jim:

Who said any conservative or R on this board supports these legislators on Ukraine?  I hardly think it would be fair for me to impute Ilhan Omar's or Rashida Tlaib's views on Israel to you, just because you and them happen to be Democrats.  

Jim

May 18, 2022 04:19 PM Forum: Politics

The Ted Cruz Supreme Court Decision

Posted By James Brown

Originally Posted by Rod Kaufman

While you have your opinion on Roe v Wade and I have mine, my point here is that it's not the role or the function of a judge to advocate anything, particularly before the case is even heard. The attorneys who present the arguments are the ones who do the advocating of either side and it's the judge's function to objectively decide the case. But that's not what Thomas did, he advocated overturning Roe v Wade before hearing any arguments. In 2000, he wrote of Roe: “Abortion is a unique act, in which a woman’s exercise of control over her own body ends, depending on one’s view, human life or potential human life. That's not what a judge should be doing, period.
If you think that any liberal justices' mind was not made up on Roe before the arguments, you are being extremely naïve.  Roe has been around and been controversial for a very long time.  They all had firm opinions formed many years ago.  

Regarding the confirmation hearings, all of the recent nominees said accurately that they respect precedent.  They do.  They did not and would not testify that the weight of precedent was 100% dispositive of any case.  The argument that any justice lied or misled the committee is pure BS.  I have seen no specific quote from a confirmation hearing that was not true.  Specifically, saying that Roe was "settled law" or "strong precedent" at a confirmation hearing is an absolutely true and honest answer.   No sitting justice testified that Roe was sacred or impossible to overturn.  They all appropriately dodged those sorts of questions as did the liberals when they were grilled by the partisan hacks on the committee.  No justice ever testifies about a specific case, at least not since "Borked" became a word.

Jim

May 18, 2022 04:59 PM Forum: Politics

The Ted Cruz Supreme Court Decision

Posted By James Brown

Originally Posted by Rod Kaufman

"Sen. Susan Collins is shocked, stunned, and astounded that two conservative, Trump-appointed Supreme Court justices may have deceived her regarding their position on abortion rights."
"According to a reported draft majority opinion leaked to Politico, both Justice Neil Gorsuch and Justice Brett Kavanaugh have voted to overturn established precedent protecting abortion rights, a precedent Collins has repeatedly said they told her they believed was “settled law.”
https://www.rollingstone.com/politics/politics-news/susan-collins-kavanaugh-gorsuch-abortion-1346875/
"Democratic Sen. Kirsten Gillibrand told CNN that conservative justices “misled the Senate, with the intention of getting their confirmation vote, with the intention of overruling Roe.” She added that “they would purposefully create the impression that they would not overrule settled precedent, and that it was not only deserving of due weight and the importance of precedent, but because it had been reaffirmed, that it deserves more weight.”
"Democratic Rep. Ted Lieu said in a May 7 tweet: “Multiple Supreme Court Justices lied during their confirmation process about their view of #RoeVWade and stare decisis. Those are the facts.” (Stare decisis, Latin for “to stand by things decided,” is a legal doctrine that courts generally follow when ruling on a similar case.)"
"Republican Sens. Susan Collins and Lisa Murkowski, both supporters of abortion rights, also have said the opinion goes against what justices had said."
https://www.factcheck.org/2022/05/what-gorsuch-kavanaugh-and-barrett-said-about-roe-at-confirmation-hearings/
I would much prefer to see a quote from the justices that you or a Senator thinks are misleading.  The opinion pieces from Rolling Stone and CNN are extremely biased. 

Incidentally, Roe is "settled law"  It has been the law for over 50 years!  There is no way Collins thought that a nominee acknowledging that Roe is "settled law" means that it could never be overturned.  She is not the naïve.   

May 18, 2022 05:05 PM Forum: Politics

The Ted Cruz Supreme Court Decision

Posted By James Brown

Originally Posted by James Brown

I would much prefer to see a quote from the justices that you or a Senator thinks are misleading.  The opinion pieces from Rolling Stone and CNN are extremely biased. 

Incidentally, Roe is "settled law"  It has been the law for over 50 years!  There is no way Collins thought that a nominee acknowledging that Roe is "settled law" means that it could never be overturned.  She is not the naïve.   
p.s.  OK, the quotes I wanted are in your fact check article.  Read the testimony in the "Fact Check" from top to bottom and identify any lies.  I see none.  

If Collins relied on her "impression" to hope that Roe could never be overturned, maybe she really is that naïve?  I doubt it.  She is now put in the unenviable position of having to push for her own legislation codifying Roe.  

May 18, 2022 05:12 PM Forum: Politics

The Ted Cruz Supreme Court Decision

Posted By James Brown

Originally Posted by James Brown

p.s.  OK, the quotes are in the fact check article.  Read the testimony from top to bottom and identify any lies.  I see none.  

If Collins relied on her "impression" maybe she really is that naïve?  
Hi Rod, I have read the "fact check" you posted twice now.  I think the money quote from an editorial perspective is this:  

"A close examination of the carefully worded answers by the three Trump appointees, however, shows that while each acknowledged at their hearings that Roe was precedent, and should be afforded the weight that that carries, none specifically committed to refusing to consider overturning it."

This is from the extremely liberal Annenberg Public Policy Center, your own source.

My take:  The argument that these justices lied, committed perjury, or even misled anyone who was paying attention is dead on arrival.   Jim

May 18, 2022 05:40 PM Forum: Politics

The Ted Cruz Supreme Court Decision

Posted By James Brown

Originally Posted by Rod Kaufman

First, as far as the two Republican senator are concerned:
"Collins, who voted to confirm Justices Gorsuch and Kavanaugh, said in a May 3 statement: “If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office.”
"Murkowski, who had backed Gorsuch and Barrett, told NBC News: “If the decision is going the way that the draft that has been revealed is actually the case, it was not—it was not the direction that I believed that the court would take based on statements that have been made about Roe being settled and being precedent.”
The judges as nominees:
"Gorsuch: Senator, again, I would tell you that Roe v. Wade, decided in 1973, is a precedent of the U.S. Supreme Court. It has been reaffirmed. The reliance interest considerations are important there, and all of the other factors that go into analyzing precedent have to be considered. It is a precedent of the U.S. Supreme Court. It was reaffirmed in Casey in 1992 and in several other cases. So a good judge will consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other."
Gorsuch: "the Supreme Court of the United States has held in Roe v. Wade that a fetus is not a person for purposes of the 14th Amendment, and the book explains that.
Durbin: Do you accept that?
Gorsuch: "That is the law of the land. I accept the law of the land, senator, yes."
"Kavanaugh avoided answering whether Roe v. Wade was correctly decided, or how he might rule in a future case challenging that court ruling. Instead, Kavanaugh repeatedly said that Roe v. Wade was “settled as precedent.”
Feinstein brought up news reports that Kavanaugh told Collins in an August 2018 private meeting that Roe v. Wade was “settled law.” When Feinstein asked Kavanaugh to explain what he meant by that, he said:
Kavanaugh: "Senator, I said that it is settled as a precedent of the Supreme Court, entitled the respect under principles of stare decisis. " "And one of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992."
"And as you well recall, senator, I know when that case came up, the Supreme Court did not just reaffirm it in passing. The court specifically went through all the factors of stare decisis in considering whether to overrule it, and the joint opinion of Justice Kennedy, Justice O’Connor and Justice Souter, at great length went through those factors. That was the question presented in the case."
Barrett: Of the above two, the handmaiden knew how to keep the starch in her skirt: "Barrett said that if a question about overturning Roe or Casey or any other case comes before her, “I will follow the law of stare decisis, applying it as the court is articulating it, applying all the factors, reliance, workability, being undermined by later facts in law, just all the standard factors. And I promise to do that for any issue that comes up, abortion or anything else. I’ll follow the law.”
I think everybody knew what Barrett's agenda was after hearing that...
I'm not sure what your point is.  Everyone knew that Trump was going to appoint conservative justices.  The justices were evasive and non-committal during the confirmation hearings.  That is sadly the way the confirmation game must be played, since the D's shamefully attacked Bork, Thomas, and most recently Kavanaugh.  The liberal nominees do it too.  No justice lied, according to at least me and the Annenberg Public Policy Center.  So, what is your point?

I highlighted the quote above, because I think you will find, if you read the last couple of years of my posts, that I too predicted that the Trump justices would not vote to overturn Roe, because of precedent and because of the social upheaval this would cause.  I was wrong (probably).  Same as Murkowski and Collins.  I am not shocked, stunned, disappointed or dismayed though!  Neither are Murkowski and Collins in my guess.  They are saying they are because they are pro-choice Republicans who have now voted to confirm the justices who possibly killed Roe.  Unlike me, Collins and Murkowski have to worry about their constituents and their constituent's votes.  I suppose this puts them in a hard spot, but there is no way the (probable) rejection of Roe literally shocked either of them!

And if it did, so what?  The nominees did not lie and they were carefully, but appropriately evasive, as shown in your Fact Check.  Jim  
 

May 18, 2022 07:28 PM Forum: Politics

The Ted Cruz Supreme Court Decision

Posted By James Brown

Originally Posted by Rod Kaufman

I know what the fact check concludes but here's my point(s):
1. When Kavanaugh was asked what he meant when he said Roe V Wade is settled law, he responded: "I said that it is settled as a precedent of the Supreme Court..."
In all honesty Jim, you don't think he knows the difference between settled law and precedent? 
2. Gorsuch: "That is the law of the land. I accept the law of the land, senator, yes."
In all honest Jim, do you believe he believed what he said and then acted in accordance with it?
In your view "settled law" is equal to "unchangeable" I guess.  We can use that definition here.  Kavanaugh never said or suggested that Roe was "unchangeable"  You really need the entire context of Kavanaugh's answer to understand his position, not just the naked quote above.  Feinstein was pushing "Settled Law" as an independent concept.  Kavanaugh explained that he was talking about precedent and stare decisis.  So, when you ask if K knows the difference between "Settled Law" and "precedent" it is obvious he does as explained below in context:

Feinstein also asked Kavanaugh about an email he sent in March 2003 while working in the George W. Bush administration. In the message, in which he replied to an email that included a draft of an op-ed written to defend some of Bush’s judicial nominees, Kavanaugh wrote: “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since [the] Court can always overrule its precedent, and three current Justices on the Court would do so.”

“This has been viewed as you saying that you don’t think Roe is settled,” Feinstein said, after reading part of the email aloud during the hearing. “So please, once again, tell us why you believe Roe is settled law, and if you could, do you believe it is correctly settled?”

Kavanaugh again called Roe “an important precedent” that “has been reaffirmed many times”:

Kavanaugh: In that draft letter, it was referring to the views of legal scholars, and I think my comment in the email is that might be overstating the position of legal scholars, and so it was not a technically accurate description in the letter of what legal scholars thought. At that time, I believe Chief Justice Rehnquist and Justice Scalia were still on the court at that time.

But the broader point was simply that I think it was overstating something about legal scholars. And I am always concerned with accuracy, and I thought that was not quite accurate description of legal, all legal scholars because it referred to “all.”

To your point, your broader point, Roe v. Wade is an important precedent of the Supreme Court. It has been reaffirmed many times. It was reaffirmed in Planned Parenthood v. Casey in 1992 when the court specifically considered whether to reaffirm it or whether to overturn it. In that case, in great detail, the three-justice opinion of Justice Kennedy, Justice Souter and Justice O’Connor went through all the factors, the stare decisis factors, analyzed those, and decided to reaffirm Roe.

That makes Casey precedent on precedent. It has been relied on. Casey itself has been cited as authority in subsequent cases such as Glucksberg and other cases. So that precedent on precedent is quite important as you think about stare decisis in this context.

Feinstein asked about "settled law" without defining it.  BK replied at length about precedent and stare decisis.   Feinstein forgot to follow up.  Probably a senior moment.  

Better than the vague "settled law," there is the concept of "super-precedent" which was defined by ACB in her hearing as: "cases that are so well settled that no political actors and no people seriously push for their overruling.”  She expressly denied that Roe was super-precedent.  Gorsuch was also specifically asked about super-precedent.  

From the fact check:

"Gorsuch said that the Roe decision was “precedent,” but declined to call it “super precedent,” a loosely defined term indicating a deeply rooted, repeatedly upheld precedent. He also declined to give his opinion on whether he thought the court’s ruling was correct."

Regarding your last point, I agree with NG and accept that Roe is "the law of the land."   What else could it be?  Every Supreme Court precedent that has ever been overturned was indisputably, "the law of the land" right up to the point it was overturned.  At the time of Gorsuch's hearing, no rational person even tried to twist Gorsuch's answer into a promise not to overturn Roe.  Why are people trying to do that now?  Also, context is important here too:

Democratic Sen. Dick Durbin asked Gorsuch about a line in his book on euthanasia and how it might relate to abortion.

Durbin: There is a statement which you made in that book, which has been often quoted, and I want to make sure that I quote it accurately here today. … And I quote, “The intentional taking of human life by private persons is always wrong.” …

How could you square that statement with legal abortion?

Gorsuch: Senator, as the book explains, the Supreme Court of the United States has held in Roe v. Wade that a fetus is not a person for purposes of the 14th Amendment, and the book explains that.

Durbin: Do you accept that?

Gorsuch: That is the law of the land. I accept the law of the land, senator, yes.

That was masterful by Gorsuch.  He possibly does not accept that a fetus is not a person under the 14th.  Maybe we will know if he writes a concurrence in the pending case.   In context, his "law of the land" statement is nothing more than a statement of legal fact.  Hardly a promise not to overturn Roe.  Durbin could have followed up, but did not.  Probably another senior moment.

After rereading the entire fact check, I am more convinced that these nominees were reasonably evasive, but did not mislead anyone, even with the benefit of 20/20 hindsight.  Their answers read in entirety stand up well to time.

Jim  (call me TLDR junior... cool)

May 18, 2022 07:39 PM Forum: Politics

The Ted Cruz Supreme Court Decision

Posted By James Brown

Originally Posted by Rod Kaufman

I know what the fact check concludes but here's my point(s):
1. When Kavanaugh was asked what he meant when he said Roe V Wade is settled law, he responded: "I said that it is settled as a precedent of the Supreme Court..."
In all honesty Jim, you don't think he knows the difference between settled law and precedent? 
2. Gorsuch: "That is the law of the land. I accept the law of the land, senator, yes."
In all honest Jim, do you believe he believed what he said and then acted in accordance with it?
Short answers:

1.  Of course he does, as demonstrated in my TLDR answer above.
2.  Yes, and absolutely, as demonstrated in my TLDR answer above.

Jim

May 19, 2022 03:23 PM Forum: Politics

The Ted Cruz Supreme Court Decision

Posted By James Brown

Originally Posted by James Lacey


Absolutely. Kavanaugh, Gorsuch, and ABC did not lie in the strictest sense of the word. They did what all supreme court nominees have done: duck, dodge, and avoid answering any specific question about how they would rule on Roe v. Wade. However, it doesn't change that many feel duped and will lose confidence in and respect for the court. I've read a good bit of the Alito leaked opinion and many different editorials, both positive and negative. Honestly, it seems like they are reasoning for the desired outcome. Alito's abortion history lesson, in the opinion, for example, appears to be in great dispute. Not to mention, I think it's ridiculous to be deciding questions about the regulation of abortion in 2022 based on what happened hundreds and hundreds of years ago.

Edit: By the way, I get it that historical precedent is vital in constitutional decision-making. My point is, what other healthcare issues do we regulate based on historical precedent? Maybe end-of-life care, but I can't think of much else. Would you not want to relegate your cardiovascular health if you had a rare genetic heart disorder to historical precedent? But I get it. There are ethical and moral viewpoints in play here as well when it comes to regulating abortion.
Hi James: 

Your point is valid if the question is "How doe we regulate health care?"  Your point is perhaps less valid if the question is "How do we define a 'person' who is entitled to legal protections?"  For the later, historical perspectives in ethics and philosophy are a big deal.  As recognized in your last line.  I can see it both ways.

I have not read the draft.  It will be interesting for you to see the differences between the draft and the end product.  I know with my own legal writing that arguments tend to change a lot, even though the key points remain the same.  Jim